- (1.) Heard learned Counsel for the petitioner.
(2.) Briefly stated the facts of the case are that on 9th June, 1999 Vehicle No. RJ02/G 3428 was checked by the authorised officer and it was found that declaration form ST-18C was not accompanied with the goods carrying in the vehicle. Therefore, the Assessing Officer issued a notice for levying penalty under Section 78(5) of the Rajasthan Sales Tax Act, 1994. In response to show cause notice, the dealer appeared and submitted his written reply contending that goods in question were meant for job work and these goods were rejected, therefore, they were being sent back. Therefore, declaration Form ST-18C was not annexed with other documents. Assessee annexed the declaration form ST-18C along with reply to show cause notice.
(3.) The learned Assessing Officer was of the view that Form ST-18C was not accompanied with the goods carrying in the vehicle at the time of checking of the vehicle, therefore, there is violation of the mandatory provisions and consequently he levied penalty to the tune of Rs. 23,400/- at the rate of 30% on Rs. 78,000/-i.e. value of the goods. Being aggrieved with the same the assessee filed an appeal. The Dy. Commissioner(Appeals) allowed the appeal vide order dated 5th January, 2004 on the ground that declaration form ST-18C was produced before the Assessing Officer along with reply to show cause notice, therefore, in view of judgment of the Hon'ble Apex Court and Tax Board (referred in the order), the penalty was liable to be set aside. Revenue preferred appeal before the Rajasthan Tax Board, which was decided along with five other appeals and vide its common order dated 28th February, 2005, the Rajasthan Tax Board dismissed the appeal of the revenue on the ground that truck was checked before 22nd March, 2002, the date when amendment was made in Section 78(5) of the Act. Therefore, penalty could not have been levied against the owner of the goods as the words "owner of the goods" were inserted in Sub-section (5) of Section 78 w.e.f. 22nd March, 2002. It is relevant to mention that the reason assigned by Dy. Commissioner(Appeals) for setting aside the penalty order was neither referred and discussed nor set aside or reversed by the Tax Board.;